R. v. CHU KAM TO AND ANOTHER

No. 229 of 1992
(Criminal)

IN THE SUPREME COURT OF HONG KONG

(Criminal Juridiction)

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R U L I N G

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Case No 229 of 1992

21 June 1994

9.40 a.m. Court resumes.

Accused present. Appearances as before.

1. It was submitted by the defence that by virtue of the use of the phrase "shall be submitted", there is a mandatory burden on the Commissioner to produce such exhibits. Failure to do so breaches the fair hearing provisions in the Bill of Rights. Any resulting conviction would not be according to law and the defendants would have been denied adequate facilities both for the preparation and conduct of their defence.

2. The Crown submitted that this section is only directory and relied only on the case of Asia Dyeing Company Limited v. The Authority (appointed under the Air Pollution Control Ordinance, Cap. 311) [1991] HKLR 263.

3. This case was decided in a totally different matrix of facts. It concerned with the Air Pollution Ordinance, Section 9. The question was whether the Authority should state whether certain pollution was in existence or imminent. The Court of Appeal decided that this section which the Authority had not complied with was only directory and not mandatory. Non-compliance did not therefore vitiate the notification given therein.

4. In my view, under Section 86(4) of the Magistrates' Ordinance, the Commissioner of Police is under a mandatory duty to take charge of all non-documentary exhibits and to produce them at trial. However, it is not a question whether this section is mandatory or directory. It cannot be that whenever the Commissioner of Police had been in breach of his duty to preserve and produce exhibit to the court, there must be a stay of the criminal proceedings concerned. The question is, whether in the event of such a breach of this duty the court should stay the criminal proceedings under the Bill of Rights or otherwise under the Common Law.

At Common Law

5. I shall start with the case of R.v. Lambeth Metropolitan Stipendiary Magistrate, Ex parte. McComb, 1983. 1 Q.B. 551. It has been said by Sir Donaldson M.R. at page 564 that:

"However, in Req. v. Lushington, Ex parte Otto (1894) 1 Q.B. 420, 423 Wright J, said:

"I think it is also undoubted law that when articles have once been produced in court by witnesses it is right and necessary for the court, or the constable in whose charge they are placed (as is generally the case), to preserve and retain them, so that they may be always available for the purposes of justice until the trial is concluded."

This suggests to me that once an article has become an exhibit, the court has a responsibility in relation to it. That responsibility is to preserve and retain it, or to arrange for its preservation and retention, for the purposes of justice. The purposes of justice are to ensure that the accused is convicted if guilty and is acquitted if innocent. I would accept that this is the position and would further accept that the usual course is for the court to entrust the exhibits to the police or to the Director of Public Prosecutions subject to the same responsibility. That responsibility was defined by Griffiths L.J. in the instant case as being (1) to take all proper care to preserve the exhibits safe from loss or damage, (2) to co-operate with the defence in order to allow them reasonable access to the exhibits for the purpose of inspection and examination, and (3) to produce the exhibits at the trial. That too I accept."

And further at page 566, he said,

"What are the applicant's rights? If he is committed for trial, he can apply to the Crown Court for an order that the Director be required to obtain the exhibits and make them available to the defence for inspection or testing. He has this right because the exhibits have been produced to the committing court and upon committal, in my judgment, responsibility for those exhibits passes to the Crown Court by operation of law. However, any such application would be bound to fail since, in the peculiar circumstances of this case, the Crown Court would be sharing that responsibility with the Irish Court of Criminal Appeal and the Irish court is that which first had actual custody and only released the exhibits subject to an unqualified undertaking by the Director to return them to it upon the conclusion of the committal proceedings. In other words, the Crown Court's responsibility is subject to the overriding authority of the Irish court.

Where does this leave the applicant? He will have three courses open to him. First, he can himself make application to the Irish court for the release of the exhibits. Second, he can ask the Director to make such an application. Third, he can do nothing at this stage and if by the time of his trial, assuming that he is committed, he has not been allowed appropriate access to the exhibits, he can ask the court to refuse to permit them to be given in evidence by the prosecution, that refusal being in exercise of its inherent power to make all such orders as are necessary to secure a fair trial."

6. This case was decided in a totally different matrix of facts, but to my mind, the guiding principle laid down therein is whether a defendant is assured to have a fair trial. I shall come back to the application of this Common Law principle after my consideration of the Bill of Rights.

Bill of Rights

7. The defence relies on Articles 10 and 11(1) and 11 (2) (b). Article 10 provides inter alia:

"In the determination of any criminal charge against him (i.e. the defendants) ... everyone shall be entitled to have a fair and public hearing."

Article 11(1) provides:

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

Article 11(2) (b) further provides:

"In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in full equality.

(b) To have adequate time and facilities for the preparation of his defence."

8. There are some Canadian cases decided under these articles. I shall now start with the case of Reg. v. Luff. 11 C.R.R. 2nd Edition, 356. Gushue J.A. said at page 361, that:

"A stay of proceedings is, as the Crown says in its factum, the most drastic remedy that a judge in a criminal case can grant. As stated by this court in the case of R.v. Sullivan,

"The staying of criminal charges against an an accused person is obviously the ultimate response by the courts to infringements of that person's constitutional rights or an abuse of court process and should only be utilized in the most serious and clearest of cases. While a judge is given the discretion under S. 24(1) to grant a remedy which "the court considers just and appropriate in the circumstances", it does not follow that the court is thereby given an unqualified right to deal with a breach as it sees fit. Any remedy granted must be for good reason in the circumstances of the particular case.

Obviously, before any remedy under the Charter can be considered by a court, there must be clear evidence, either viva voce or by affidavit, of the nature of the breach sought to be redressed and the effect of that breach on the defendant. Where the remedy sought is a stay of proceedings, that evidence would have to be compelling."

This case concerns with a: " ... respondent who was charged with failing to provide a proper breath sample into an approved screening device contrary to S.254(5) of theCriminal Code. At trial, the respondent's counsel made an application under S.24(1) of the Charter with respect to alleged breaches by the Crown of SS. 11(d) and 7 of the Charter. Counsel argued that he had been denied pre-trial disclosure as the Crown or police had not provided him with copies of all materials in the police file. Instead of receiving copies, he was permitted to review the contents of the police file at the police station. Counsel at trial called no evidence and made no application to the judge for disclosure. An application to stay proceedings was made. The trial judge granted application for the stay and held that the Crown must provide the defence with copies of all documentation in the file of an accused person. The Crown appealed the stay of proceedings entered by the trial judge and appeal was allowed."

9. In other words, the case again is concerned with different facts. However, the guiding principle is that the court should grant a stay of proceedings in the most serious and clearest of cases and the evidence in favour of the stay would have to be compelling.

10. In the case of R.v. Davis, 13 C.R.R. 2nd Edition 101,

"The accused was charged with sexual assault and uttering threats to cause death. The sexual assault kit was destroyed before the accused was arrested. The accused applied for a stay of proceedings on the ground that the destruction of the sexual assault kit infringed his rights under S.7 of the Canadian Charter of Rights and Freedoms as the unavailability of the kit for independent analysis by the defence of blood and DNA samples deprived him of his right to make full answer and defence. He also claimed that the destruction of the kit infringed his rights under S. 15 of the Charter as it discriminated against him in the defence that persons charged in other cases in which such kits are taken but not destroyed have access to the kit while he did not."

The application was dismissed.

It was held that,

"The Crown in this case was obviously unable to tender the result of any blood tests or any DNA analysis as proof of the accused's guilt, so this was not a case of non-disclosure of Crown evidence. Further, the accused failed to establish that therewas a reasonable possibility that the destruction of the kit impaired his ability to make full answer and defence. The application was based solely on conjecture. The mere fact that some potential evidence is destroyed or becomes unavailable does not of itself constitute a Charter breach that will result in an automatic stay.

Section 15 of the Charter had no application in this case."

11. In other words, the question to be asked is this: Have the defendants established that there is a reasonable possibility that the destruction or loss of the exhibit impaired their ability to make full answer and defence?

12. A Canadian example from the application of the Bill of Rights in granting a stay will be found in the case of Reg. v. Wyatt, 12 C.R.R. (2d), 328.

"The applicant was charged on April 30th 1992, with 14 sexual offences under the Criminal Code. The offences were alleged to have taken place from 1964 to 1974. The applicant's conduct was investigated by the police in 1972 and at the prompting of the police, the applicant underwent treatment. In 1974, the applicant attended further counselling sessions. No incidents were alleged since that time. The Crown stayed 12 counts, but proceeded with two counts arising from matters alleged to have taken place in 1974. Police files for 1974 and earlier, however, were no longer available. A medical witness could not locate all relevant medical records and was not willing to rely on his memory. Defence counsel brought an application to stay the two charges on the basis that the applicant could not make full answer and defence pursuant to S.7 of the Canadian Charter of Rights and Freedoms."

The application was allowed.

"The applicant bears the burden of showing that he is unable to make full answer and defence on the balance of probabilities as contemplated by S. 7 of the Charter and S. 8(3) of the Criminal Code. The applicant need not establish his position beyond a reasonable doubt. In this case, disclosure of police files for 1974 and earlier is now impossible. Certain medical records are no longer available. Taken altogether, the fact that these documents are unavailable, the problems of memory arising from lapse of time, and the consequent inability to have an adequate foundation for cross-examination or investigation at this late date, leads me to the conclusion that on a balance of probabilities the accused cannot undertake a full and fair defence." per Macleod J.

The Application in the Present Case

13. Can the defendants undertake a full and fair defence? In this case, the very offensive substance and exhibits alleged to be seized from the 2nd defendant and the house of the 1st and 2nd defendants' were lost. The jury would be deprived of the opportunity to examine them including their containers.

14. Further, the Crown alleged that the drugs were sealed and then signed by both defendants whilst they put their case through cross-examination that they had never signed on the envelope. This cannot be produced to court now. I do accept that such a failure to produce those exhibits would prevent a defendant proving a material fact which may go to prove his case or discredit the Prosecution case. What is left behind is the words of the police against the words of the defendants.

15. That includes the allegation of the police that those drugs which were sent to the Government Chemist were seized from the defendant. This is by no means just an evidential consideration whether evidence can still be given orally about them when they failed to produce them. Further, it is not an answer to say they were already formally given an opportunity to inspect all non- documentary exhibits at the return date of the committal proceedings on 29th of July 1992. The question is whether the failure to produce them now at the trial would impair their ability to undertake their defence. I think it would.

16. The loss of these drugs exhibits is one of the most serious cases. They were lost whilst they were in the custody of the police in a police station. It is different from some of the Canadian cases involving destruction of sexual assault kit, or breath test kit which has to be destroyed in normal scientific procedure.

17. In our present case, there is a real possibility that the failure of producing all these exhibits would impair the defendant's ability to make full answer and defence. In the end I find that their rights are infringed under Article 10 of the Bills of Right, i.e. to have a fair trial, and Article 11(2) (b), i.e. to have adequate facilities for the preparation of their defence.

By the same token I do not think they can have a fair trial without having these exhibits produced to court under the Common Law. Accordingly, I order that all further criminal proceedings in this case against the 1st and 2nd defendants in this case be stayed.

(COURT CONFERS WITH CLERK)

(COUNSEL CONFER)

(COURT CONFERS WITH CLERK)

10.20 a.m. Court adjourns.

21st June 1994.

David Yam, Judge of the High Court.